Employment Tribunal queries

bazster

SeduLOUs wrote: »

I think the best option is to sit down with all of the payslips and get together as much information as you can to come up with a figure you can justify.

Indeed, see above, we can do that.

SeduLOUs wrote: »

If there are missing payslips, then the employer may provide these, but don't count on it. There may be a route to get them all via a Subject Access Request, but the employer will have up to 40 days to respond which may not be helpful if there is a deadline clock ticking.

There are no missing payslips, she filed them all, just never checked them!

SeduLOUs wrote: »

Once you come up with a figure you can justify, get a letter before action sent ASAP. Ideally you don't want to go to court at all if you can avoid it, and hopefully they will just pay up.

Agreed, but stop press: coincidentally the manager concerned has contacted her this afternoon to tell her she will get all the missing pay in this month's payroll run, although we're yet to see how much they've come up with. Hopefully, then, it will be sorted out by non-nuclear means!

bazster

sangie595 wrote: »

One further point. If they have underpaid her, then I guess she isn't the only person paid in this way.

Possibly, but she became an employee when her previous employer was taken over, and she is (was) the only "taken over" employee remaining so it could be that her contract was some kind of hybrid unique within the company. Indeed, that's probably how this issue arose: she had terms in her contract different from "native" employees, and no-one pointed this out to payroll!

sangie595 wrote: »

The employer could argue custom and practice and an implied contract - or even that the contract had been varied subsequently. If this applies to all their employees, then (a) it might be hard to argue against as contracts do change and there is no requirement to reissue the statement of terms, and (b) you would have to claim to a tribunal - the county court has no jurisdiction in matters of employment law and determining the terms of employment in the event of a dispute is the tribunals jurisdiction.

The contract says what it says, I don't see how any other employees' contracts are relevant or how anything could possibly vary the contract without her express agreement. It takes two to tango, a contract can't be varied unilaterally or by reference to a third party's unrelated contract. The written terms might not need to have been re-issued but nonetheless there cannot be any variation without her being told of it and agreeing to it, and that has never happened, despite routine variations (e.g. pay rises) always being notified in writing.

I believe implied terms/"custom and practice" apply only to terms which are not agreed expressly. In this instance we are talking about things which are clear and unambiguous in the written contract.

We're quite satisfied that the terms of the contract are what they are and they have been breached - and indeed the company has not attempted to argue otherwise. The awkwardness comes from them being the only party with the detail to calculate the precise size of the issue, and thus far they haven't produced it - but it seems shortly will.

sangie595

bazster wrote: »

Possibly, but she became an employee when her previous employer was taken over, and she is (was) the only "taken over" employee remaining so it could be that her contract was some kind of hybrid unique within the company. Indeed, that's probably how this issue arose: she had terms in her contract different from "native" employees, and no-one pointed this out to payroll!



The contract says what it says, I don't see how any other employees' contracts are relevant or how anything could possibly vary the contract without her express agreement. It takes two to tango, a contract can't be varied unilaterally or by reference to a third party's unrelated contract. The written terms might not need to have been re-issued but nonetheless there cannot be any variation without her being told of it and agreeing to it, and that has never happened, despite routine variations (e.g. pay rises) always being notified in writing.

I believe implied terms/"custom and practice" apply only to terms which are not agreed expressly. In this instance we are talking about things which are clear and unambiguous in the written contract.

We're quite satisfied that the terms of the contract are what they are and they have been breached - and indeed the company has not attempted to argue otherwise. The awkwardness comes from them being the only party with the detail to calculate the precise size of the issue, and thus far they haven't produced it - but it seems shortly will.

You may be satisfied that the terms of the contract are what they are - that does not mean the law will agree with you. It is much easier to change an employment contract than you appear to think, and it is rather easy for the employer to say that they changed the terms and did consult - they will have the paperwork to prove it, because creating paperwork is easy. And the don't actually need an employees agreement either - they simply have to enforce it when the employee continues to turn up to work. After all, if that is far-fetched, how far-fetched is someone not noticing they haven't been paid correctly for nine years? Until they have parted on bad terms?

If the company agree to pay it, all well and good. But if they do not, then you will probably have an employment based dispute, subject to a tribunal and not a county court. The company does not, at this point, have to argue anything at all - if they say that the payments were correct under the terms it is down to you to prove the terms and the alleged underpayment. That is a tribunals job to hear.

SeduLOUs

It sounds like the employer is playing ball, at least to some degree, so that's good.

Re the points made on the calculation, I guess you are right that you can come up with a figure by just taking the number of bank holidays in the year and demonstrating how you have come to it. Employer can then dispute if they choose by stating "she didn't work on X or Y day".

I guess next step is you figure out what you think you are owed in total (bearing in mind you are likely only allowed to go back 6 years, possibly less), compare it to what is paid out in the next payroll and decide whether further action or advice needs to be taken.

A compromise possibly shouldn't be out of the question though - whilst it's the employer's error, it sounds like there is a little more to it than just an unwillingness to pay (more like a genuine error caused by a takeover) and really it should have been noticed sooner on your side - you've managed to get to the bottom of the mess rather quickly on leaving the employment, so if she's not willing/able to check payslips in future then perhaps this is something you can assist with going forward.

Re proving what terms she is on, she will just present her contract of employment. If employer claims that new terms have been agreed then they will no doubt be able to prove this by providing signed documentation. It would be highly unusual for rates of pay and holiday entitlement to be changed through 'custom and practice'.

sangie595

SeduLOUs wrote: »

Re proving what terms she is on, she will just present her contract of employment. If employer claims that new terms have been agreed then they will no doubt be able to prove this by providing signed documentation. It would be highly unusual for rates of pay and holiday entitlement to be changed through 'custom and practice'.

No it isn't highly unusual for rates of pay, holidays or even the actual job to change without there being a signed document. Half the working population of the country don't sign contracts, either because new ones aren't issued, or because they continue to work without signing (which is actually the same thing as signing). That is exactly why, if the employer decides to dispute the employment terms, they can muddy the water to a great extent. The OP may be able to cast doubt on their practices - they can come back casting doubt on why the OP's friend only got around to noticing something so fundamental when they left on bad terms. It isn't hard to make the speculation that this is pay back stick. The OP seems to think that they will come up with something, and maybe they will. But he also states they are "taking their time". I have no doubt that they know exactly what they are doing and why they are taking their time. If this resolves into an employment dispute, "they took their time and we let them" is not going to cut any ice on claim deadlines. It is possible - but only possible, that a tribunal would look at a case which is late because it is referred by another court without jurisdiction, but only if it is clear that the action was not delayed on the claimants part. The longer it takes to go forward, the less likely they are to consider a referred claim on the basis of deadlines.

BobQ

Forgive me I do not have time to read through all of this carefully but there may be an issue with statutory leave (rather than contractual leave

One thought that occurs to me is was your partner on the minimum statutory leave entitlement of 5.6 weeks (including BHs)? If so and the reason for leaving was related to the BHs the issue of being paid for working them is a contractual issue. However no contract can excuse the employer from providing statutory leave. So it is important that there was an alternative day off provided. If the firm has not been giving the statutory minimum leave then dismissal could be automatically unlawful.

SeduLOUs

sangie595 wrote: »

No it isn't highly unusual for rates of pay, holidays or even the actual job to change without there being a signed document. Half the working population of the country don't sign contracts, either because new ones aren't issued, or because they continue to work without signing (which is actually the same thing as signing).

I get your point, not everyone is issued a written contract even if they should be. I have had an increased rate of pay in the past without signing a document myself, but have always received either a letter or email or other written confirmation. My job role has developed over the years with no written update, and I understand that my job description is now built solidly around the notion of 'custom and practice' and not the very outdated job description I have printed at home.

However, I cannot think of a single example in my own experience where a rate of pay or other term of benefit to the employee was REDUCED unilaterally by the employer, without some sort of formal documentation of the employee agreeing or being appropriately consulted. Perhaps my experience isn't wide enough and it is more commonplace as you are suggesting, but it doesn't seem like a very prudent thing to do as an employer as an employee may decide months or years down the line that it was a 'mistake' (perhaps like in this thread?)

I would suspect if an employer claimed that some new terms were agreed the first question asked by a tribunal would be why there was no formal documentation in place, and the balance of probabilities would possibly be tipped accordingly. But then again I've never been in a tribunal, so I can only guess.

BobQ

SeduLOUs wrote: »

I would suspect if an employer claimed that some new terms were agreed the first question asked by a tribunal would be why there was no formal documentation in place, and the balance of probabilities would possibly be tipped accordingly. But then again I've never been in a tribunal, so I can only guess.

A "contract" is a summary of your terms and conditions at the start of employment. You may indeed get a new contract or a letter about a change. However you may not. Terms can be changed by statute, a collective bargaining agreement (with a union), it can be written in a staff handbook/website or can just be implied or based on custom and practice. It can even be verbal. Legally, any unilateral change by an employer is a breach of contract, but you accept any change by failing to object or by working to the new terms.

So if your boss tells you that instead of starting at 8am, you must start at 0830am, you accept it by coming to work at that new time. Of course you can refuse, argue your case, risk being sacked, and may have a case for constructive dismissal etc. If you can prove the employer changed the contract then an ET is likely to rule in your favour

So the change does have to be formally documented to be lawful. But often changes are made in ways that most people will not challenge

sangie595

SeduLOUs wrote: »

I get your point, not everyone is issued a written contract even if they should be. I have had an increased rate of pay in the past without signing a document myself, but have always received either a letter or email or other written confirmation. My job role has developed over the years with no written update, and I understand that my job description is now built solidly around the notion of 'custom and practice' and not the very outdated job description I have printed at home.

However, I cannot think of a single example in my own experience where a rate of pay or other term of benefit to the employee was REDUCED unilaterally by the employer, without some sort of formal documentation of the employee agreeing or being appropriately consulted. Perhaps my experience isn't wide enough and it is more commonplace as you are suggesting, but it doesn't seem like a very prudent thing to do as an employer as an employee may decide months or years down the line that it was a 'mistake' (perhaps like in this thread?)

I would suspect if an employer claimed that some new terms were agreed the first question asked by a tribunal would be why there was no formal documentation in place, and the balance of probabilities would possibly be tipped accordingly. But then again I've never been in a tribunal, so I can only guess.

I broadly agree - but reductions are equally common now, and whilst an employer ought to cover their own back, many do not. That isn't an excuse, just a fact. And I regret to say that in tribunals it is odd how often the documentation turns up, especially since documents don't have to be signed by an employee.

But either way, if a solution cannot be obtained, then a legal case is not necessarily as simple as it may look, and an obstinate employer can draw it out for a very long time. And all without incurring any real costs to themselves if they want, whilst it is clocking up costs and effort to the claimant. And especially time - time that is ticking away if this becomes a tribunal matter.

SeduLOUs

sangie595 wrote: »

I broadly agree - but reductions are equally common now, and whilst an employer ought to cover their own back, many do not. That isn't an excuse, just a fact. And I regret to say that in tribunals it is odd how often the documentation turns up, especially since documents don't have to be signed by an employee.

But either way, if a solution cannot be obtained, then a legal case is not necessarily as simple as it may look, and an obstinate employer can draw it out for a very long time. And all without incurring any real costs to themselves if they want, whilst it is clocking up costs and effort to the claimant. And especially time - time that is ticking away if this becomes a tribunal matter.

I do completely see your point. I understand how things should be done, but my partner's situation has widely opened my eyes to what actually happens when an employer believes they are untouchable and can do whatever they want without challenge or consequence (and simply sacks anyone who dares to question them).

We are sitting on a strong case, but at £950 to start a hearing it's still extremely difficult to decide how to proceed. On principle we want justice to be served, but there is always the risk on the day that the case fails and we end up with even less money then we have now, and the whole thing will be time consuming, expensive and stressful at a time when job-hunting or impressing a new employer should be the priority.

It's hardly surprising that people put up with this sort of nonsense from employers really. It's hard enough finding a job without the stigma of a dismissal or even a successful ET on your record. Scary stuff.